Drone Law Blog


Proposed Drone Regulations Allow Waiverless Flying Over-People and Night Operations

The Department of Transportation made three major announcements that will be an advancement for the commercial drone industry: (1) proposed regulations to allow drone operators to fly over people as well as at night WITHOUT a waiver or an exemption, (2) an advanced notice of proposed rule making asking for recommendations on countering problematic drones affecting safety and security, and (3) the awarding of three contracts to commercial service entities to develop technology to provide flight planning, communications, separation, and weather services for drones under 400ft.

Proposed Regulations for Relaxing the Prohibition on Operations Over People and Night Operations.

The commercial drone industry has been greatly hampered because Part 107 prohibits the flying over non-participating people and also prohibits operations at night.  The only way around these prohibitions is to obtain a waiver or an exemption. Night waivers are attainable but over people waiver application denial rates are around 99%.  Yikes.

Operations over people is significant because not only are those operations valuable within line of sight, they become extremely valuable when you want to fly beyond line of sight. Why? Generally, you can’t really figure out if you are flying over people when you are beyond line of sight because of just that – it’s beyond your line of sight – so you just must assume so.

Keep in mind that this is not just night and over people being changed. Part 107 is being “refreshed” to make things better. For example, the current 107 says you must show require documentation to FAA inspectors, but the proposed regulation is saying you have to present required documentation also to a National Transportation Safety Board representative; any federal, state, or local law enforcement officer; or a representative of the Transportation Security Administration.

The major highlights of the proposed regulations are:

  • Requires you to present documentation to FAA, TSA, law enforcement, or NTSB when requested. But as I pointed out in the previous article, I don’t think law enforcement is currently adequately trained to handle to this capability.
  • You can operate over non-participating people provided your operation meets the requirements of at least one of the operational categories. There will be three categories of aircraft which each have their corresponding benefits:
    • Category 1. 0.55 pound (250 grams) and under aircraft which can fly over people without any design standards, manufacturer does not have to prove anything to the FAA, and no operational restrictions other than just Part 107.
    • Category 2. No operational restriction aircraft. Weighs more than 0.55 pounds and:
      • Has been satisfactorily demonstrated to the FAA by the manufacturer they are below the Category 2 injury threshold,
      • No exposed rotating parts that could lacerate human skin, and
      • No FAA-identified safety defect.
    • Category 3. Operational Restricted Aircraft. Aircraft which:
      • Have been satisfactorily demonstrated to the FAA by the manufacturer they are below the Category 3 injury threshold,
      • No exposed rotating parts that could lacerate human skin, and
      • Because of its FAA identified safety defect, is required to have operational mitigations requiring the pilot to (1) not fly over any open-air assembly of people, (2) fly only over a closed or restricted access site with everyone on the site being notified, and (3) does not maintain sustained flight over the human being (only briefly transiting).
  • Even though you can operate over people with category 2 and 3 aircraft, you cannot operate over people in a moving vehicle.
  • The initial knowledge exam will cover operations at night.
  • Instead of doing a recurrent knowledge exam at a testing center, you can do recurrent training online instead. Recurrent knowledge testing currently does not test on weather, aircraft loading, physiological effects of drugs & alcohol, etc. while recurrent training would test you on those topics.

Don’t get too excited. These are proposed regulations. On average, you are looking at around 1.5 years until a notice of proposed rulemaking becomes a final regulation you can operate under. Plus, the proposal said, the FAA does not plan on publishing the final rule for operations over people AND night operations until the remote identification rulemaking is finalized. The remote identification rulemaking has not been published yet. That’s still working its way through the system. Don’t confuse that with the advance notice of proposed rulemaking which was also announced.

Seeking Recommendations on Managing Problematic Drones

The DOT is planning on issuing an advance notice of proposed rulemaking. “An advance notice of proposed rulemaking (ANPRM) tells the public that FAA is considering an area for rulemaking and requests written comments on the appropriate scope of the rulemaking or on specific topics.” Why is this advance notice of proposed rulemaking so great? It gives you, the public, an opportunity to provide recommendations to the FAA to influence their future rulemaking.  

We all heard about the recent Gatwick situation. It was reported that a drone prompted numerous shutdowns of the major airport in England. What really happened? I don’t know. But I do know it prompted everyone to start talking about countering problematic drones. There were a lot of things reported by the media. As time went on, some questioned the reports. DJI reported, “To date, none of these reports have been confirmed, and there is no proof that any of these alleged incidents occurred. Despite the lack of evidence, new sightings have been reported at more airports, raising the prospect that new reports are being spurred by publicity from past incidents.”

Regardless of whichever side you are on, this DOT advance notice of proposed rulemaking is requesting you to provide comments on 26 questions ranging from required minimum stand-off distances for unmanned aircraft to establishing design requirements for systems critical to safety of flight during beyond visual line of sight operations. This is the perfect forum to raise any issues.

Unmanned Aircraft Systems Traffic Management Systems Pilot Project Awarded

The UAS UTM Pilot Project (UPP) contracts were awarded to:

  • Nevada UAS Test Site Smart Silver State
  • Northern Plains Unmanned Aircraft Systems Test Site
  • Virginia Tech Mid-Atlantic Aviation Partnership

Don’t confuse the UPP with the IPP which is the Integration Pilot Program. Here is a comparison between the UPP and IPP. The UPP, which was originally initiated by NASA but subsequently became a major joint effort between the FAA and NASA, “is intended to develop and demonstrate a traffic management system to safely integrate drone flights within the nation’s airspace system.”

Conclusion

The DOT is continuing the drone integration efforts by changing the regulations to be more pro-business while wisely seeking input on how to handle problematic drones.  The over people regulations and the UPP will be beneficial in helping build the foundation towards more beyond visual line of sight operations in the future. While these regulations won’t be coming into effect immediately, we can start preparing now to position ourselves for more unrestricted operations in the future.  


Drone Sprayers: Uses, Laws & Regulations, Tips to Save Money (2019)

drone-spraying

Interested in a drone sprayer?

Drones are really just aerial platforms from which to do things. Most people associate drones as data collection platforms where you mount sensors such as cameras, LIDAR, etc., but drones can also be used for the delivery of all sorts of other things besides just drone package delivery or medical delivery. One great example is using the drone as a drone sprayer.

I’m a commercial pilot, current FAA certificated flight instructor, aviation attorney, and former professor at Embry-Riddle Aeronautical University. I distilled into this article some of the important points that I have used as I have assisted clients in successfully obtaining Federal Aviation Administration approvals to operate their drone sprayers. If you need my help with exemptions, a Part 107 night waiver, going through the 137 agricultural aircraft operator certification, please contact me for pricing.

Table of Contents:

Drone Sprayer Examples:

I’m going to touch on the high points of each of these drone sprayer uses. Please keep in mind that each drone sprayer has is own set of unique problems, economics, laws, etc. My commentary is not an exhaustive discussion on the whole area.

A. Pollen Drone Sprayer

There is a problematic decline of bee population numbers around the United States which has been caused for various reasons. Dropcopter has stepped into this gap with a very innovative idea of using their drone sprayer to pollinate crops.

As a Digital Trends article put it,

“Pollination by drone isn’t the only alternative to insect pollination, but it may just be the most efficient current solution. Alternatives include using large tractor-mounted liquid sprayers or leaf blowers driven on quad bikes. Both of these are problematic due to the lack of reach and, in the case of liquid sprayers, the time-sensitive nature of the pollen once it gets mixed with liquid. Dropcopter’s drones, meanwhile, can cover 40 acres per hour, and can double the pollination window by also flying at night. This is one advantage they even have over bees since bees don’t fly at nighttime, when flowers remain open.”

It also appears that their Dropcopter can maybe increase yields. Dropcopter’s website says, “Dropcopter completed its patent pending prototype, and conducted the first ever UAS pollination of orchards crops, boosting crop set by 10%.” A study was completed and here are some pictures of the apples.

B. Drones for Spraying Insecticides (Mosquito Control, etc.)

Because of their ability to communicate diseases, fighting mosquitoes is a big thing around the U.S. Mosquito abatement organizations are seeking to actively use drones to help fight mosquitoes. Recently, the Department of Transportation (DOT) announced the Drone Integration Pilot Program. The DOT picked ten winners, one of which is the Lee County Mosquito Control District located in Ft. Myers Florida. “The proposal focuses on low-altitude aerial applications to control/surveille the mosquito population using a 1500-lb. UAS.”  Lee County is not the only mosquito control district interested in using drones for spraying pesticides. Other control districts currently have drone sprayer programs underway.

If you are a government agency that fights mosquitoes or other pests, there is the potential for your operations to be done under a certain type of classification called a public aircraft operation which gives your operation more flexibility than non-government entities. See below for a discussion.  If you are interested in helping your mosquito control district use drone sprayers, contact me.

Mosquitoes are not the only insects you might be interested in fighting. Drone Volt created a mount to spray insecticide on hornet nests way up in trees.

C. Crop Dusting Drones (Herbicide, Fertilizer, Fungicide, etc.)

Drone sprayers seem like a good choice to be crop dusting drones but there are MANY variables here that affect whether it is a good decision for your situation or not. Factors that influence whether this makes sense or not are:

  • Type of crop,
  • Value of the crop,
  • Ground size of the crop,
  • Droplet size requirements to be placed on the crop,
  • How quickly you need to spray a particular chemical on a crop (is there a window of time?), and
  • How much liquid you need to spray.

For large areas of land, manned aircraft and ground spraying rigs make more sense based upon cost per acre compared to crop dusting drones. Read my section below on the economics to understand this fully.  For smaller pieces of land or land that is inaccessible to ground rigs or manned aircraft, it might make sense to use crop dusting drones.

D. Drone Tree Seed Planter

Drone Seed is looking to corner the market on precision forestry.  Not only can it do a potentially dangerous job of planting trees on the slopes of steep inclines but it can also potentially do it faster than by workers on foot.

E. Wind Turbine De-Icing Drone Sprayer

The Verge did an article on the company Aerones which built a large drone sprayer with some serious lifting capacity to fly up and spray de-icing fluid on wind turbine blades.  The Verge article explained:

“The craft has a tether line supplying water, which it sprays at up to 100 liters a minute (with optional de-icing coating), and another for power, meaning it can stay aloft indefinitely. Cleaning by drone costs around $1,000, compared to $5,000 and up for cleaning by climbers.

The process is good for general maintenance, but also helps increase power efficiency. If snow and ice build up on a turbine’s blades, it slows the rate at which they produce power and can even bring it to a complete halt. Aerones adds that using a drone for de-icing is both quicker and safer than sending humans up using a cherry picker”

Drone Sprayer Economics

There is far more hype to this area that is being driven by possibilities rather than economics.

Drones are mobile platforms to spray from. There are other mobile platforms such as:

  • Manned aircraft (airplanes and helicopters)
  • Ground spraying rigs (tractor pulled, truck mounted, etc.)
  • Humans (Backpack sprayer)

Each of these platforms has pros and cons that need to be weighed against the benefits of the drone sprayer. For the discussions below, I’m assuming someone would be purchasing something like the HSE or DJI drone sprayers.

1. Manned Aircraft (Airplanes & Helicopters) vs. Drone Sprayers

Manned Aircraft: Most drone sprayers cannot carry a large payload compared to manned aircraft.  Manned aircraft also are lower in cost per acre than drone sprayer operations. For crop spraying,  drone sprayers won’t be used for large acres of land because the spraying rate per day is also way too small compared to manned aircraft which can spray thousands of gallons in one day. This is a major point people miss. There are narrow windows of time to spray crops due to all sorts of things such as weather, chemical being sprayed, growth cycle, etc. Simply put, drone sprayers cannot spray fast enough because their tanks are small.

Drone Sprayers: Drones have the ability to service clients who have smaller amounts of land or area inaccessible to manned aircraft.

2. Ground Spraying Rigs (Tractor Pulled, Truck Mounted, etc.)

Ground Spraying Rigs: They do not have to deal with the FAA and all those hassles. They can also hold much more spraying material than a drone.

Drone Sprayers: Drone sprayers can access areas that ground spraying rigs cannot, such as uneven, steep, or inaccessible terrain or sensitive environments where the ground vehicles would damage the area or crops. Drone sprayers are lower in cost to purchase and maintain.

3. Humans (Backpack Sprayer)

Backpack Sprayer:  Super cheap to purchase ($90) compared to a drone sprayer. No FAA problems.

Drone Sprayers: You can access areas with less danger to your employees. (Slip and fall anyone? Hello workers’ compensation claims.) Potentially more time efficient. Less exhausting than walking around with a hand pump sprayer. Depending on batteries and how quickly you can refill, this can be more time efficient than backpack sprayers.

So Where Do Drone Sprayers Fit In?

When you go to the home improvement store to buy some paint, you’ll notice that there are small spray paint cans, low cost electric paint sprayers, and large metal heavy duty commercial sprayers. By analogy, drone sprayers fill a sweet spot that is similar to low cost electric paint sprayers.

You have to focus on the strengths of drone sprayers to see where they shine:

  • Able to get into locations that manned aircraft, ground spraying tractors, or hand sprayers cannot access.
  • Safer than hand spraying.
  • Lower acquisition costs versus larger pieces of equipment (ground spraying tractors) or manned aircraft. Do you really need to buy that ground spraying rig?
  • Easy and low cost to transport and deploy. (Ground spraying rigs you have to drive or tow there.  Manned aircraft you have to fly to the location).
  • Able to service smaller clients that would not have hired a manned aircraft.

Can You Give Me Some Drone Spraying Examples?

  • High value crops that tend to cover smaller acres of land (vineyards, apple orchards, almond orchards, etc.).
  • Spraying pollen on higher value crops to increase crop yields.
  • Crops on terrain that is too inaccessible or inconvenient to get to with a ground sprayer yet is too small to justify hiring a manned aircraft spraying operation.
  • Herbicide spraying on rocky embankments near a water reservoir where you don’t want to endanger your employees or you have a hard time getting to the rocky areas with the ground rig.
  • Mosquito abatement in areas that ground vehicles (or boats) cannot easily get to and that don’t justify the use of manned aircraft.
  • You’re a company that is running an in-house operation testing out aerial application of chemicals or on a particular type of plant.

What About Costs? How Much Does a Spraying Drone Operation Cost?

Yes, those examples didn’t really take into account the total drone sprayer operational costs.  Here are some rough numbers you can use to go off of:

  • Federal Aviation Administration (FAA) Related:
    • FAA Registration ($5 per drone). Good for 3 years.
    • FAA Remote Pilot Certificate Knowledge Exam ($150 per remote pilot). Aeronautical test knowledge is good for 24 months.
    • Study Material for Remote Pilot Test (Free-$250)  (I have a huge free study guide for the test located here).
    • If you are spraying anything other than just pure water,
      • You’ll need a Part 137 Agricultural Aircraft Operator Certificate ($0 per operator but will take time). Indefinite.
      • Exemption ($0 per operator but will take time and legal knowledge.) Lasts 2 years.
    • Need to spray at night? Part 107 night waiver.  ($0) Lasts 4 years.
  • Drone Sprayer Insurance. I can’t estimate this because there are many factors here.   Read my article on drone insurance before you buy some.
  • Crop Dusting Drone Sprayer & Equipment.  (13,000-40,000)
  • Spraying Pesticide? You’ll need a state restricted use pesticide license. (Around $100 to $250). Things can cause this to fluctuate so you’ll have to check your state.)

If you need my help with exemptions, a Part 107 night waiver, going through the 137 agricultural aircraft operator certification, please contact me for pricing.

Now before you start making business plans. You need to know that these drones are considered aircraft. Aircraft are regulated by the Federal Aviation Administration (“FAA”). In addition to the FAA, other U.S. Federal laws may apply to your operation.

United States Drone Spraying Law

A. Federal Drone Spraying Law

1. Federal Aviation Regulations

Just at the get go, if you are a government agency, some of these regulations might NOT apply to you. This is completely beyond the scope of this article but I have talked about it more over here.

Part 107

Most commercial drone operators follow Part 107. There are other legal methods of getting your aircraft airborne legally but this is the most time and cost efficient. Basically, Part 107 requires the drone sprayer to be registered, the pilot to have a remote pilot certificate, and for the operations to be done according to the restrictions listed in Part 107. Click here to read up on the complete summary of what Part 107 says.

Here are the two most important things you need to know about Part 107 in relation to spraying drones:

  1. Part 107 is only for drones that weigh on take-off less than 55 pounds and
  2. You cannot carry hazardous material on the drone.

Now these are not deal breakers but you’ll need exemptions from these restrictions. Exemptions do not cost anything to file with the FAA but they do take time and legal knowledge to make sure you have identified all the regulations you need to be exempted from. If you don’t have the time or knowledge, you can hire people, like me, to help you with this.

Also keep in mind that for 55 pound + exemptions, there are documents and data the FAA will want you to submit in support with the exemption. This data might NOT be supplied by the drone sprayer manufacturers, which means you need to create it or find someone who has. See tips below for more on this topic.

Part 137 – Agricultural Aircraft Operations. 

Part 137 specifically defines the applicability of this Part of the Code of Federal Regulations. Agricultural aircraft operation means the operation of an aircraft for the purpose of:

  1. Dispensing any economic poison,
  2. Dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or
  3. Engaging in dispensing activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects.

Part 137.3 defines economic poison:

Economic poison means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the Secretary of Agriculture shall declare to be a pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.

Most spraying operations fall into the applicability of Part 137 and because of such, they’ll need exemptions from sections of this part. Why? Part 137 was created a long long time ago. The regulations designed for manned aircraft do not make sense with drone sprayers. Conveniently, if you are already getting an exemption from the prohibition in Part 107 to not carry hazardous materials (like economic poisons), you can just add the sections of Part 137 that you need exempting from all into one request for exemption document.

Here is a major point that people miss. In addition to the exemption to do agricultural aircraft operations, the operator will need to obtain an agricultural aircraft operator certificate. You can thankfully pursue both the exemption and certificate in parallel to speed things up but you’ll need the exemption approval before you get inspected by the FAA as the final step in getting your agricultural aircraft operator certificate.

2. Other Federal Regulations

Keep in mind the FAA isn’t the only federal agency you might have to deal with. There is also the Environmental Protection Agency and also the Occupational and Health Safety Administration which have regulations that apply.  Discussing these regulations is way outside the scope of this article but I wanted to mention this.

B. State & Local Drone Spraying Laws

There are state and local laws that apply to aerial application spraying (manned and unmanned spraying). This is a very broad area but just know that states require you to obtain some type of restricted use pesticide license to spray any economic poisons and typically you need the certification in the category you are performing the work (aerial application).

Some states require you have your drone sprayer registered with the FAA and even the state. The state won’t issue any state registration until you also show some drone insurance on your drone sprayer. This means you won’t be able to do some type of hourly insurance set up but will have to obtain annual insurance and request a certificate of insurance to show to the state.

Local laws also might apply depending on what you are spraying, when you are spraying, and where you are spraying.

Drone Sprayers (and Spreaders) for Sale

Right now, there are some companies that are manufacturing spraying drones. The drone sprayers listed below are ones I’m familiar with. I didn’t do an exhaustive search for all that is out there.

Some of these companies also have foggers and spreaders that mount onto the aircraft.

Keep in mind you don’t just buy the drone sprayer. You’ll be also thinking about purchasing a transport case, extra batteries, training, etc.

Tips on Starting a Drone Sprayer Operation (Read This Before You Buy)

1. Work With an Attorney

A. Attorney Client Relationship Protects Sensitive Conversations.  The attorney-client privilege protects conversations between the client and the attorney. This allows for open conversations regarding the legality of the operations.  “Was I supposed to do……..”  or “We just received a letter of investigation” are supposed to be brought up in the open and honest attorney-client discussion. There are alot of regulations that apply. Do you really want to rely on a non-attorney to give you legal advice? You’re the one getting the fines, not the consultant.

Please note that it is ATTORNEY client relationship and not consultant client relationship. The FAA, federal and state law enforcement, plaintiff’s attorneys, etc. can subpoena your consultant to testify against you. They can’t do that with an attorney except for really rare situations. The consultant is stuck between a rock and a hard place. They either tell the truth and goof you up, lie and risk jail, or refuse to answer and go to jail.  The answer is simple – you’ll get goofed over every time.

B. An attorney can actually provide legal advice – lawfully. You’re going to need a lot of answers regarding the laws. Almost all the states I know of require that people who provide legal advice be licensed attorneys in that state. Only attorneys can provide legal advice. If anyone claims they are an attorney, check the state bar directory in which they live to see if they are a current member in good standing. For example, if you go to the Florida Bar’s member search page, you can search for me and see that I’m eligible to practice law and in good standing with the Florida Bar.

I know of a person running around in the industry right now that calls themselves an attorney but that person is actually a disbarred attorney who was disbarred because of dishonest conduct towards the client. It will look pretty bad to your boss if you hire a so-called attorney who turns out to not be a LICENSED attorney.

C. They have a duty to you. – This is an important one. Yes, we all understand the idea of giving secrets away to a competitor is a big no-no. But consider this….as a Florida Bar attorney, I’m actually prohibited from paying out to any non-attorney or drone manufacturers any referral fees. This means that if I recommend something or someone, I’m recommending it because it is good, not because I’m getting paid for it. Furthermore, this means that people who refer to me are sending you to me because I’m the best person to help, NOT that I’m giving them a kickback.  

D. Protection. Most attorneys have legal malpractice insurance which is there to protect you in case there is a mistake.  I don’t know of any consultants that have legal malpractice insurance to protect you if they advise you incorrectly on the aviation regulations or the other laws that apply to this area. Furthermore, attorneys go through background checks to get barred. Consultants don’t have to get checked out.

2. Are You Planning on Flying 55 Pounds or Heavier in the United States? 

A. Limited Payload. To fly under Part 107, your drone sprayer needs to weigh under 55 pounds on take-off. It could have the capability to fly heavier, but you need to keep it under. This is an important point because you could purchase a drone sprayer capable of flying over 55 pounds but you’ll be forced to limit the amount of liquid in your tanks for the drone and liquid together to be under 55 pounds at take-off.

B. More Costs & Different Rules. The amount of effort to fly a drone sprayer weighing 55 pounds or heavier is much more considerable than just flying under Part 107 without an exemption. Keep in mind you cannot just get a remote pilot certificate and fly a 55+ drone sprayer. The pilot will need the more costly sport pilot certificate and will be operating under a completely different set of regulations than Part 107. This means your up front costs WILL be higher for flying a 55+ drone than for an under 55 drone.  This also means that if you want to scale out the drone spraying operation, you’ll need to pay for training to get the employee a sport pilot certificate or recruit people that already have this license or higher.  It might make sense for your operation to have multiple under 55 pound drone sprayers and maybe one or more 55+ drone sprayers for larger jobs.

C. Lack of Reliability Data. This is actually the worst one.  For a 55+ exemption, the FAA will ask for information on the drone sprayer, such as how many total hours have been flown on it to show engineering reliability.  This is different than manuals. Is there any supporting data that shows this type of air frame is safe? This means you’ll most likely have to obtain the drone sprayer data yourself or find someone who already has. Maybe in the future the FAA will approve other 55+ exemptions based upon someone doing the previous leg work on the same make and model of drone sprayer but I have yet to see that.

D. Registration Planning. The easy online method of registering the drone sprayer under Part 48 is for only drone sprayers that will be operated under 55 pounds. This means you’ll have to go through the headache of de-registering under Part 48 and re-registering under Part 47 which is a pain in and of itself. Proper planning would say if you plan on going 55+ with your drone sprayer, just register under Part 47 which is good for both under 55  and 55+ operations.

Conclusion

Drone sprayers provide great opportunities for certain types of operations but not all situations. To help you achieve your drone sprayer goals quickly and legally, it is best to work with someone who has familiarity with the area.

If you are planning on navigating this difficult area, contact me. I’m a commercial pilot, current FAA certificated flight instructor, aviation attorney, and former professor at Embry-Riddle Aeronautical University. I am currently assisting clients in these matters and HAVE successfully obtained exemption approvals for clients to do drone spraying.  I’m also familiar with the non-aviation related legal issues that are extremely important for drone sprayer operations.


Counter-Drone Law & Technology: We Need a Comprehensive Game Plan.

The Gatwick Airport drone incident has caused us to see the need for counter-drone technology, but while most commentary is focusing on only short-term issues and solutions (“Just shoot it down”), what is not being recognized is the need for a complete end-to-end solution which would involve training law enforcement and prosecutors to arrest and prosecute these types of events to a successful conviction.

Gatwick Airport, which is just south of London, has been shut down repeatedly by numerous sightings of drones flying over the airfield. This has caused a major disruption not only to the passengers at the airport, but also at other connecting airports.

You might have thought, “Why can’t they just shoot it down?” or “Don’t we have some technology that can prevent this? There are different types of counter-drone technology out there. You can classify these technologies typically into two categories: (1) detectors and (2) defenders.  Detectors do just that, detect drones using different methods (radar, radio waves, etc.). Defenders disrupt or destroy the unmanned aircraft using all sorts of creative technology (shotgun shells, jammers, GPS signal spoofers, lasers, and even trained eagles.) Each of the types of technology has a different price tag and effectiveness for different types of scenarios.

Fundamental to understanding the counter-drone technology is a knowledge of law­­, for it is within the law that the technology is used. They cannot be separated. In the United States, there are anti-jamming laws and anti-GPS-spoofing laws.  It is illegal to damage or destroy an aircraft or hack into a drone.  If that was not enough, you potentially open yourself to extra lawsuit liability from plaintiff attorneys whose clients might have been hurt because of the illegal operation.

The liability is because the operation of the technology could cause problems for other people like those using airports. In October 2016, the FAA sent out a letter to airports regarding uncoordinated counter-drone technology, “Unauthorized [drone] detection and counter measure deployments [at airports] can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”

The FAA did some counter-drone research and published in July 2018 a letter which discussed the study:

  • Airport environments have numerous sources of potential radio interference which makes drones hard to detect.
  • “A high level of manpower is required to operate equipment and discern false positives such as when a detection system may falsely identify another moving object as a [drone].”
  • “The primary factor in determining the feasibility of installing a permanent system at an airport is the number of sensors needed to achieve the desired airspace coverage.” Different sensors have unique characteristics, requirements, and coverage distances.
  • Due to the nature of airports being operated by many entities (TSA, FBOs, airport management, etc.) it might be hard to acquire and deploy.
  • Due to the rapidly developing counter-drone technology, it becomes obsolete upon installation.

Basically, it’s not an easy, or cheap, thing to try to stop a drone near an airport.

But can anyone do anything to stop these drones? Yes, multiple federal laws have been passed within the last two years to give counter-drone use authority to Department of Homeland Security, Department of Justice, United States Coast Guard, Department of Energy, and Department of Defense. But even with these new laws, there will still be a need to determine safe and effective rules of engagement regarding these bad drones. DHS and DOJ will be working on this quickly in light of recent event.

So let’s say you have the technology and track down the bad guy, now what? The next two logical steps are arrest and prosecute. But these two steps raise all sorts of issues that even lawyers have a hard time wrestling with. I’ve talked to law enforcement officers who wondered “What in the world am I supposed to do if I catch the bad guy?” The situation is similar to a dog that barks and runs after a car; when it catches the car, it doesn’t really know what to do next.  If you arrest under some state law that was created to stop the drone problem, you run into unlawful arrest and preemption problems. If you think federal law is being violated, are you as a state or local law enforcement officer within your jurisdiction to arrest them?

Assuming you catch the bad guy and turn over the case to a prosecutor, does the state or federal prosecutor even know what to do with this bad guy? The FAA sends out letters of investigation but has historically prosecuted very few individuals or companies flying drones. The U.S. Government Accountability Office May 2018 report listed a total 49 legal enforcement actions from the FAA from June 7, 2007 to May 2, 2018. Department of Transportation’s Inspector General’s Office has done some investigations but overall prosecutions are rare.

Here is what we need – a long-term vision of detecting, defending, and prosecuting the bad drone actors all the way to a successful conviction.

This end goal will help us make decisions going forward. For example, drones do have all sorts of data on them that can be used by law enforcement for tracking down the bad guy and prosecuting them. David Kovar has a presentation on drone data forensics and the National Institute of Standards and Technology even created a database of forensic images of many popular drones to help law enforcement. We would shy away from destructive defenders and try to capture the drone intact so we can try and extract any forensic data from it to lead to an arrest and prosecution.

This end goal of trying to obtain successful convictions would also mean we need appropriate training for law enforcement officers and prosecutors regarding potential problems and solutions that can arise during arrest and prosecution.

In the end, we want only the bad guy to be uncertain and indecisive – not law enforcement.


Uber’s Drone Delivery Problems (Law & Economics)

The Wall Street Journal reported recently that Uber put up a job posting for an executive position at UberExpress, the drone delivery operation within the UberEats food delivery unit, to help get the drones up and running sometime in 2019, with commercial drone delivery of food planned in multiple locations by 2021. This isn’t the first as other companies have announced their interest or plans in offering drone delivery services of which Amazon is the most popular. (I previously wrote an in-depth article on Amazon’s legal problems.To keep things in context, this was a job posting to try and hire someone for an executive position, not the layout of an integration plan for the Federal Aviation Administration (FAA).

The need for an executive makes sense since Uber is currently a partner with the City of San Diego, which is one of 10 recent Department of Transportation’s Drone Integration Pilot Program winners. Furthermore, the FAA Reauthorization Act of 2018 told the FAA to update the existing regulations, originally designed for manned aircraft, to address under 55-pound drone delivery. Regardless of these two beneficial events, there are some major hurdles that UberExpress will face to establish a commercial food drone delivery business: the law and the economics.

1. The Law.

UberExpress is going to face issues with the federal government as well as the states that the commercial drone delivery services will be offered in. On top of that, some counties, cities, and towns have created laws that could affect the operations as well. For one given flight, you could have federal, state, county, and city laws applying to the flight, some which could even be contradicting each other!

From a federal government standpoint, the Federal Aviation Administration (FAA) is going to be the biggest problem. (Other federal agencies will affect operations such as Department of Transportation, Federal Communications Commission, etc.) The FAA has two ways of currently allowing companies to get airborne legally: (1) Part 107 and (2) through the rest of the Federal Aviation Regulations while getting special regulatory approvals to operate under alternative restrictions. Yes, the FAA Reauthorization Act of 2018 is trying to make things easier, but the rulemaking process takes time (around 2.5 years from notice of proposed rulemaking to final rule taking effect).

Both of these methods have problems.

Part 107 limits the aircraft to the visual line of sight of the pilot flying the drone and you cannot fly over people unless you have a waiver to do so. Over people waiver approvals have around a 99% rejection rate from the FAA.

Yikes. On top of that, it is regulatory prohibited to obtain a Part 107 waiver to fly beyond line of sight to make a delivery of other people’s property!

The other method of operating is under all of the rest of the Federal Aviation Regulations, that were originally designed for manned aviation, which is problematic because you have to go through and identify all the problem regulations you cannot easily comply with and then ask for an exemption from the FAA to fly under alternative restrictions. This will be extremely legal and time-intensive. This method at least offers the ability to fly beyond-line-of-sight of the pilot, which allows one delivery drone to cover a greater area, as opposed to Part 107 which is just line-of-sight. The exemption method will still have issues with flying over people, avoiding other aircraft, etc. which will all have to be addressed during the exemption process.

From a state and local legal standpoint, UberExpress will be like water and take the path of least resistance -but they have to find it first. A good amount of effort will go into just identifying which geographical locations would have the least amount of legal headaches and/or if there is a need to change the law via lobbying or through a lawsuit. Regarding lawsuits, while the law is very clear that aviation is regulated only by the federal government, it can be time consuming and costly to try and get a court ruling in your favor. But why fight it out with lobbying and lawsuits when some states have wisely created laws that prevent local governments from creating any drone laws. Florida has a drone law that prevents local governments from creating laws “relating to the design, manufacture, testing, maintenance, licensing, registration, certification, or operation of an unmanned aircraft system[.]”

2. The Economics

Here are two important points regarding using drones for delivery: 1) law and safety drive the economics of the aviation industry and 2) operational possibility does not equal operational profitability.

The FAA is a safety organization. They are focused on just that. I remember being on the phone one time with an FAA employee in D.C. who emphatically told me, “The FAA is not interested in your business. We only care about safety.” Businesses will do a balancing test to see if the additional levels of safety are really worth the extra costs for the safety increase while the FAA it is mostly just doing a safety analysis. A recent National Academies of Science report which exposed many of the problems inside the FAA stated, “operation of UAS has many advantages and may improve the quality of life for people around the world. Avoiding risk entirely by setting the safety target too high creates imbalanced risk decisions and can degrade overall safety and quality of life.” The FAA has a very high target for safety……and does not care about your business.

Setting aside the FAA’s heavy focus on safety, the regulations limit your operational capability which means potentially higher infrastructure/operational costs. Part 107 can only allow flights to be flown within line of sight. Even assuming you tried to initially get something going under Part 107, the line of sight issue (let’s just say you can see the aircraft 1 mile out) will limit the amount of surface area you can cover so you’ll need more aircraft….and pilots….and maintenance which means more overhead costs. Obtaining an exemption to fly beyond line of sight package delivery is the best option but will be time consuming and legal intensive initially which means those operations will not be happening anytime soon.

On top of the regulations limiting operations, they also increase your cost of operations. You have to have certified pilots, aircraft, maintenance schedules, etc. that need to be all operated according to aviation standards or some sort of “flavor” of those standards.

While there are many examples on the news showing the possibility of drone delivery, I think the early adopters of profitable delivery will be situations where there are delivery of items that are of a low payload weight and the cost of an alternative delivery method is unavailable or costly. A hamburger with fries will be a low payload weight but is the extra cost of drone delivery worth it to you when the next best alternative is UberEats or some other food delivery service? If cost is not a factor and availability is what you desire (little time to wait or you are in a hard to get to area), then this could be useful.

But why stop with food? UberExpress has the opportunity to expand and provide fast delivery for other low weight items where availability is an issue, such as medicines or blood to patients with time-sensitive problems.

CONCLUSION

UberExpress will be facing some regulatory challenges as they seek to integrate. As they navigate the constantly evolving area known as “drone law,” they will need to build out operations to benefit from large economies of scale to drive down the operational costs to where the cost of service will be comparable to other alternative methods of delivery already available that have been made efficient through years of experience.

Do you think this can or cannot be done? Would you as a consumer be willing to pay more for your food or other items to be delivered by drones quickly?


Illinois Drone Laws by Attorney & Pilot (2018)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Researching? I created a page on Drone Laws(federal, state, & international) and another on only US drone laws by state.

620 ILCS 5/42.1

Sec. 42.1. Regulation of unmanned aircraft systems.
(a) As used in this Section:
“Unmanned aircraft” means a device used or intended to be used for flight in the air that is operated without the possibility of direct human intervention within or on the device.
“Unmanned aircraft system” means an unmanned aircraft and its associated elements, including communication links and the components that control the unmanned aircraft, that are required for the safe and efficient operation of the unmanned aircraft in the national airspace system.

(b) To the extent that State-level oversight does not conflict with federal laws, rules, or regulations, the regulation of an unmanned aircraft system is an exclusive power and function of the State. No unit of local government, including home rule unit, may enact an ordinance or resolution to regulate unmanned aircraft systems. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution. This Section does not apply to any local ordinance enacted by a municipality of more than 1,000,000 inhabitants.

(c) Nothing in this Section shall infringe or impede any current right or remedy available under existing State law.

(d) The Department may adopt any rules that it finds appropriate to address the safe and legal operation of unmanned aircraft systems in this State, so that those engaged in the operation of unmanned aircraft systems may so engage with the least possible restriction, consistent with their safety and with the safety and the rights of others, and in compliance with federal rules and regulations.

 

(70 ILCS 5/) Airport Authorities Act.

70 ILCS 5/8.12

Sec. 8.12. To police its property and to exercise police powers in respect thereto or in respect to the enforcement of any rule or regulation provided by the ordinances of the Authority and to employ and establish, maintain, and equip a security force for fire and police protection of a public airport and to provide that the personnel of the security force shall perform other tasks relating to the maintenance and operation of that airport. Such a security force shall not be deemed to be a regularly constituted police or fire department within the meaning of Sections 10-3-1 and 10-3-2 of the Illinois Municipal Code. However, members of such security force are conservators of the peace and as such have all powers possessed by policemen in cities, and sheriffs, including the power to make arrests on view or warrants of violations of federal and state statutes, city or county ordinances and rules and regulations of the Authority and governing federal agencies; provided, that they may exercise such powers only within the area of jurisdiction of the Authority when such exercise is required for the protection of Authority properties and interests, its personnel and persons utilizing its facilities, and otherwise, within such jurisdiction, when specifically requested by appropriate federal, State or local law enforcement officials. With respect to any security force established for police protection, the members of such security force shall be persons who have successfully completed an approved training course or approved training program offered at a police training school established under the “Illinois Police Training Act”, as such Act may be now or hereafter amended. The members of such security force may not serve and execute civil processes.

 

(725 ILCS 167/) Freedom from Drone Surveillance Act.

(725 ILCS 167/1)

Sec. 1. Short title. This Act may be cited as the Freedom from Drone Surveillance Act.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/5)

Sec. 5. Definitions. As used in this Act:

“Authority” means the Illinois Criminal Justice Information Authority.

“Drone” means any aerial vehicle that does not carry a human operator.

“Information” means any evidence, images, sounds, data, or other information gathered by a drone.

“Law enforcement agency” means any agency of this State or a political subdivision of this State which is vested by law with the duty to maintain public order and to enforce criminal laws.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/10)

Sec. 10. Prohibited use of drones. Except as provided in Section 15, a law enforcement agency may not use a drone to gather information.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/15)

Sec. 15. Exceptions. This Act does not prohibit the use of a drone by a law enforcement agency:

(1) To counter a high risk of a terrorist attack by a specific individual or organization if the United States Secretary of Homeland Security determines that credible intelligence indicates that there is that risk.

(2) If a law enforcement agency first obtains a search warrant based on probable cause issued under Section 108-3 of the Code of Criminal Procedure of 1963. The warrant must be limited to a period of 45 days, renewable by the judge upon a showing of good cause for subsequent periods of 45 days.

(3) If a law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or the destruction of evidence. The use of a drone under this paragraph (3) is limited to a period of 48 hours. Within 24 hours of the initiation of the use of a drone under this paragraph (3), the chief executive officer of the law enforcement agency must report in writing the use of a drone to the local State’s Attorney.

(4) If a law enforcement agency is attempting to locate a missing person, and is not also undertaking a criminal investigation.

(5) If a law enforcement agency is using a drone solely for crime scene and traffic crash scene photography. Crime scene and traffic crash photography must be conducted in a geographically confined and time-limited manner to document specific occurrences. The use of a drone under this paragraph (5) on private property requires either a search warrant based on probable cause under Section 108-3 of the Code of Criminal Procedure of 1963 or lawful consent to search. The use of a drone under this paragraph (5) on lands, highways, roadways, or areas belonging to this State or political subdivisions of this State does not require a search warrant or consent to search. Any law enforcement agency operating a drone under this paragraph (5) shall make every reasonable attempt to only photograph the crime scene or traffic crash scene and avoid other areas.

(6) If a law enforcement agency is using a drone during a disaster or public health emergency, as defined by Section 4 of the Illinois Emergency Management Agency Act. The use of a drone under this paragraph (6) does not require an official declaration of a disaster or public health emergency prior to use. A law enforcement agency may use a drone under this paragraph (6) to obtain information necessary for the determination of whether or not a disaster or public health emergency should be declared, to monitor weather or emergency conditions, to survey damage, or to otherwise coordinate response and recovery efforts. The use of a drone under this paragraph (6) is permissible during the disaster or public health emergency and during subsequent response and recovery efforts.

(Source: P.A. 98-569, eff. 1-1-14; 98-831, eff. 1-1-15.)

    (725 ILCS 167/20)

Sec. 20. Information retention. If a law enforcement agency uses a drone under Section 15 of this Act, the agency within 30 days shall destroy all information gathered by the drone, except that a supervisor at that agency may retain particular information if:

(1) there is reasonable suspicion that the information contains evidence of criminal activity, or

(2) the information is relevant to an ongoing investigation or pending criminal trial.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/25)

Sec. 25. Information disclosure. If a law enforcement agency uses a drone under Section 15 of this Act, the agency shall not disclose any information gathered by the drone, except that a supervisor of that agency may disclose particular information to another government agency, if (1) there is reasonable suspicion that the information contains evidence of criminal activity, or (2) the information is relevant to an ongoing investigation or pending criminal trial.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/30)

Sec. 30. Admissibility. If the court finds by a preponderance of the evidence that a law enforcement agency used a drone to gather information in violation of the information gathering limits in Sections 10 and 15 of this Act, then the information shall be presumed to be inadmissible in any judicial or administrative proceeding. The State may overcome this presumption by proving the applicability of a judicially recognized exception to the exclusionary rule of the Fourth Amendment to the U.S. Constitution or Article I, Section 6 of the Illinois Constitution to the information. Nothing in this Act shall be deemed to prevent a court from independently reviewing the admissibility of the information for compliance with the aforementioned provisions of the U.S. and Illinois Constitutions.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/35)

Sec. 35. Reporting.

(a) If a law enforcement agency owns one or more drones, then subsequent to the effective date of this Act, it shall report in writing annually by April 1 to the Authority the number of drones that it owns.

(b) On July 1 of each year, the Authority shall publish on its publicly available website a concise report that lists every law enforcement agency that owns a drone, and for each of those agencies, the number of drones that it owns.

(Source: P.A. 98-569, eff. 1-1-14.)

    (725 ILCS 167/40)

Sec. 40. Law enforcement use of private drones.

(a) Except as provided in Section 15, a law enforcement agency may not acquire information from or direct the acquisition of information through the use of a drone owned by a private third party. In the event that law enforcement acquires information from or directs the acquisition of information through the use of a privately owned drone under Section 15 of this Act, any information so acquired is subject to Sections 20 and 25 of this Act.

(b) Nothing in this Act prohibits private third parties from voluntarily submitting information acquired by a privately owned drone to law enforcement. In the event that law enforcement acquires information from the voluntary submission of that information, whether under a request or on a private drone owner’s initiative, the information is subject to Sections 20 and 25 of this Act.

(Source: P.A. 98-831, eff. 1-1-15.)

(20 ILCS 5065/) Unmanned Aerial System Oversight Task Force Act.

(20 ILCS 5065/1)

(Section scheduled to be repealed on September 1, 2017)

Sec. 1. Short title. This Act may be cited as the Unmanned Aerial System Oversight Task Force Act.

(Source: P.A. 99-392, eff. 8-18-15.)

    (20 ILCS 5065/5)

(Section scheduled to be repealed on September 1, 2017)

Sec. 5. Purpose. The use of drones is becoming more common in everyday applications both commercially and privately. It is clear that increased drone use creates emerging conflicts and challenges to providing guidance into the safe operation of drones, while not infringing upon the constitutional rights of others. It is necessary to establish a task force to provide oversight and input in creating comprehensive laws and rules for the operation and use of drone technology within this State, subject to federal oversight and regulation.

(Source: P.A. 99-392, eff. 8-18-15.)

    (20 ILCS 5065/10)

(Section scheduled to be repealed on September 1, 2017)

Sec. 10. Definitions. As used in this Act:

“Task Force” means the Unmanned Aerial System Oversight Task Force.

“Unmanned Aerial System” or “UAS” means an unmanned aerial vehicle or drone.

(Source: P.A. 99-392, eff. 8-18-15.)

    (20 ILCS 5065/15)

(Section scheduled to be repealed on September 1, 2017)

Sec. 15. The Unmanned Aerial System Task Force.

(a) There is hereby created the Unmanned Aerial System Oversight Task Force to study and make recommendations for the operation, usage, and regulation of Unmanned Aerial Systems, commonly referred to as “drone” technology, within this State.

(b) Within 90 days after the effective date of this Act members of the Task Force shall be appointed by the Governor and shall consist of one member from each of the following agencies or interest groups:

(1) a member of the Division of Aeronautics of the Department of Transportation, nominated by the Secretary of Transportation;

(2) a member of the Department of State Police, nominated by the Director of State Police;

(3) a Conservation Police officer of the Department of Natural Resources, nominated by the Director of Natural Resources;

(4) a member of the Department of Agriculture, nominated by the Director of Agriculture;

(5) a member of the Department of Commerce and Economic Opportunity, nominated by the Director of Commerce and Economic Opportunity;

(6) a UAS technical commercial representative;

(7) a UAS manufacturing industry representative;

(8) a person nominated by the Attorney General;

(9) a member of the Illinois Conservation Police Lodge, nominated by the president of the Lodge;

(10) a member of a statewide sportsmen’s federation, nominated by the president of the federation;

(11) a member of a statewide agricultural association, nominated by the president of the association;

(12) a member of a statewide commerce association, nominated by the president or executive director of the association;

(13) a person nominated by an electric utility company serving retail customers in this State;

(14) a member of the Illinois National Guard, nominated by the Adjutant General;

(15) a member of a statewide retail association, nominated by the president of the association;

(16) a member of a statewide manufacturing trade association, nominated by the president or chief executive officer of the association;

(17) a member of a statewide property and casualty insurance association, nominated by the president or chief executive officer of the association;

(18) a member of a statewide association representing real estate brokers licensed in this State, nominated by the president of the association;

(19) a member of a statewide surveying association, nominated by the president of the association;

(20) a law enforcement official from a municipality with a population of 2 million or more inhabitants, nominated by the mayor of the municipality;

(21) a law enforcement official from a municipality with a population of less than 2 million inhabitants, nominated by a statewide police chiefs association;

(22) a member of a statewide freight railroad association, nominated by the president of the association; and

(23) a member of a statewide broadcasters association, nominated by the president of the association.

(b-5) Within 90 days after the effective date of this amendatory Act of the 99th General Assembly, 8 members of the Task Force shall also be appointed as follows: 2 members appointed by the Speaker of the House of Representatives, 2 members appointed by the Minority Leader of the House of Representatives, 2 members appointed by the President of the Senate, and 2 members appointed by the Minority Leader of the Senate.

(c) Nominations to the Task Force must be submitted to the Governor within 60 days of August 18, 2015 (the effective date of Public Act 99-392), except that the nomination from a statewide broadcasters association shall be made within 60 days after the effective date of this amendatory Act of the 99th General Assembly. The Governor shall make the appointments within 30 days after the close of nominations. The term of the appointment shall be until submission of the report of comprehensive recommendations under subsection (g) of this Section. The member from the Division of Aeronautics of the Department of Transportation shall chair the Task Force and serve as a liaison to the Governor and General Assembly. Meetings of the Task Force shall be held as necessary to complete the duties of the Task Force. Meetings of the Task Force shall be held in the central part of the State.

(d) The members of the Task Force shall receive no compensation for serving as members of the Task Force.

(e) The Task Force shall consider commercial and private uses of drones, landowner and privacy rights, as well as general rules and regulations for safe operation of drones, and prepare comprehensive recommendations for the safe and lawful operation of UAS in this State.

(f) The Department of Transportation shall provide administrative support to the Task Force.

(g) The Task Force shall submit a report with recommendations to the Governor and General Assembly no later than July 1, 2017.

(Source: P.A. 99-392, eff. 8-18-15; 99-649, eff. 7-28-16.)

(720 ILCS 5/) Criminal Code of 2012.

(720 ILCS 5/48-3)

Sec. 48-3. Hunter or fisherman interference.

(a) Definitions. As used in this Section:

“Aquatic life” means all fish, reptiles, amphibians, crayfish, and mussels the taking of which is authorized by the Fish and Aquatic Life Code.

“Interfere with” means to take any action that physically impedes, hinders, or obstructs the lawful taking of wildlife or aquatic life.

“Taking” means the capture or killing of wildlife or aquatic life and includes travel, camping, and other acts preparatory to taking which occur on lands or waters upon which the affected person has the right or privilege to take such wildlife or aquatic life.

“Wildlife” means any wildlife the taking of which is authorized by the Wildlife Code and includes those species that are lawfully released by properly licensed permittees of the Department of Natural Resources.

(b) A person commits hunter or fisherman interference when he or she intentionally or knowingly:   ………

(10) uses a drone in a way that interferes with another person’s lawful taking of wildlife or aquatic life. For the purposes of this paragraph (10), “drone” means any aerial vehicle that does not carry a human operator.

(c) Exemptions; defenses.

(1) This Section does not apply to actions performed by authorized employees of the Department of Natural Resources, duly accredited officers of the U.S. Fish and Wildlife Service, sheriffs, deputy sheriffs, or other peace officers if the actions are authorized by law and are necessary for the performance of their official duties.

(2) This Section does not apply to landowners, tenants, or lease holders exercising their legal rights to the enjoyment of land, including, but not limited to, farming and restricting trespass.

(3) It is an affirmative defense to a prosecution for a violation of this Section that the defendant’s conduct is protected by his or her right to freedom of speech under the constitution of this State or the United States.

(4) Any interested parties may engage in protests or other free speech activities adjacent to or on the perimeter of the location where the lawful taking of wildlife or aquatic life is taking place, provided that none of the provisions of this Section are being violated.

(d) Sentence. A first violation of paragraphs (1) through (8) of subsection (b) is a Class B misdemeanor. A second or subsequent violation of paragraphs (1) through (8) of subsection (b) is a Class A misdemeanor for which imprisonment for not less than 7 days shall be imposed. A person guilty of a second or subsequent violation of paragraphs (1) through (8) of subsection (b) is not eligible for court supervision. A violation of paragraph (9) or (10) of subsection (b) is a Class A misdemeanor. A court shall revoke, for a period of one year to 5 years, any Illinois hunting, fishing, or trapping privilege, license or permit of any person convicted of violating any provision of this Section. For purposes of this subsection, a “second or subsequent violation” means a conviction under paragraphs (1) through (8) of subsection (b) of this Section within 2 years of a prior violation arising from a separate set of circumstances.

(e) Injunctions; damages.

(1) Any court may enjoin conduct which would be in violation of paragraphs (1) through (8) or (10) of subsection (b) upon petition by a person affected or who reasonably may be affected by the conduct, upon a showing that the conduct is threatened or that it has occurred on a particular premises in the past and that it is not unreasonable to expect that under similar circumstances it will be repeated.

(2) A court shall award all resulting costs and damages to any person adversely affected by a violation of paragraphs (1) through (8) or (10) of subsection (b), which may include an award for punitive damages. In addition to other items of special damage, the measure of damages may include expenditures of the affected person for license and permit fees, travel, guides, special equipment and supplies, to the extent that these expenditures were rendered futile by prevention of the taking of wildlife or aquatic life.

(Source: P.A. 97-1108, eff. 1-1-13; 98-402, eff. 8-16-13.)

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Drone Lawsuits & Litigation Database (2018)

drone-lawsuitsInterested in learning about drone lawsuits?

I have compiled the various drone lawsuits/litigation/prosecutions into the list below.

There has been a wide range of drone-related cases in the last couple of years ranging from flamethrowers mounted on drones to a drone crashing into a wedding guest.  I’m going to refer them collectively as drone lawsuits.

Some of the drone lawsuits I have written in-depth articles on, while other drone lawsuits I might just cite an article.  If you know of a drone lawsuit that I have NOT put up here, please send me an email! :)

The drone lawsuits list below is broken up into Federal courts, Federal administrative courts (e.g. NTSB), and then state courts. Note that for criminal cases, I ONLY included cases where the prosecutor has chosen to file charges. There are many more individuals who have been arrested for flying a drone but the prosecutors for whatever reason did not choose to file charges. I did not include any drug transportation or prison-drop related prosecutions since those really aren’t drone cases but just drug or contraband cases. 

Notice: I try to keep this drone lawsuits list up to date. This page MIGHT not be up to date with rulings. Think of this page more of a starting point to research further into the final outcomes. 

If you are a person who has a drone-related mater outside of Florida, but you want to work with me, hire a local attorney in your state and tell them to contact me. If you are an attorney and need my help for a drone-related matter, please contact me.

Quick Summary on Drone Lawsuits/Litigation:

Most of the criminal cases tend to be prosecuted under the state law equivalent of careless and reckless endangerment or something along those lines. The other batch of prosecutions has to do with violations of exporting technology associated with military drones.

DJI’s lawsuits involve them being on the receiving end of a class action or DJI being the plaintiff in a patent infringement lawsuit.

Then there is everything else. The civil drone lawsuits are all over the place (an Equal Protection Clause challenge against a state drone law, injured people suing drone flyers, products liability, breach of contract, etc.).

Drone Lawsuits in Federal Courts

Federal Circuit Court

Federal District Court

  • Autel Robotics USA LLC v. DJI -patent infringement action case in US District Court for the Southern District of New York. Complaint here.
  • EPIC v. FAA, Drone Advisory Committee RTCA, & more. – Lawsuit under the Administrative Procedures Act and the Federal Advisory Committee Act to obtain records from the the Drone Advisory Committee.
  • EPIC v. Department of Transportation– EPIC is doing a lawsuit of the Freedom of Information Act to obtain documents from the Unmanned Aircraft System Registration Task Force.
  • Robert Taylor v. FAA – Class action lawsuit over the registration regulations currently being litigated in the D.C. Circuit seeking around $840 million in damages and fees. Dismissed.
  • Reichert v. FAA – Currently being litigated. Class action lawsuit against the FAA seeking to destroy the FAA registry and get the money back to all those who have registered.
  • Singer v. City of Newton – Adjudicated.  Federal District Court of Massachusetts struck down the local drone ordinance as being unconstitutional. It was appealed by the City to the appeals court but the City asked for the case to be dismissed which the court granted.
  • FAA v. Haughwout case (the kid with the gun and the drone) is currently being litigated a federal district court in Connecticut and the only order was that the FAA’s subpoena powers were very broad.
  • Flores v. State of Texas – Currently being litigated in the Southern Federal District Court of Texas on whether the Texas state drone law violates the Equal Protection Clause.
  • FAA v. Skypan case in the federal North District Court of Illinois.
  • Boggs v. Meredith case in the federal Western District Court of Kentucky which was dismissed. Boggs’ drone was shot down by Meredith. Boggs sued in federal court claiming the drone was in navigable airspace (which means he was not trespassing in Meredith’s airspace) and was entitled to compensation. The court dismissed the case because the court did not have the subject matter jurisdiction to decide the case and the case should be resolved in Kentucky state court.
  • DJI v. Yuneec – DJI is suing Yuneec alleging patent infringement.
  • DJI v. Autel –  DJI files a patent infringment lawsuit.
  • Garmin v. uAvionix- Garmin filed suit against uAvionix for patent infringement.
  • Sives v. DJI  – Class Action lawsuit against DJI regarding software update that allegedly damaged the drones.
  • Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.
  • Justice Laub v. Nicholas Horbaczewski et al – Laub alleges that Horbaczewski breached a contract. They are demanding $9,900,000 from Horbaczewski and Drone Racing League, Inc.  Both Horbaczewski and Drone Racing League, Inc. have sued in New York state court asking for a declaration that Laub is not an owner of Drone Racing League.
  • United States v. Porrata – Defendant was sentenced to 5 years in prison and a $1.5 million fine for scamming investors with their sham drone manufacturing company.
  • Hobbico is doing Chapter 11 banktupcy.
  • Ehang filed for Bankruptcy. 
  • The Inspector General for the Department of Transportation mentioned that their have been some investigations by the Department of Transportation against drone flyers.  “Finally, prosecuting UAS owners who violate FAA regulations or engage in illegal flight activities has been challenging. Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions. Ultimately, further attention is needed to ensure FAA has strong oversight and enforcement mechanisms in place so it can effectively identify violations and mitigate the safety risks associated with increased UAS operations.”
  • Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. et al. Filed April 16, 2018 in California Central District Court. Holly Cal Productions was hired to film a wedding which resulted in a patron being hit in the eye and going blind.  The lawsuit is surrounding the insurance policy’s aircraft exclusion.
  • QFO Labs, Inc. v. Parrot, Inc., Parrot S.A., and Parrot Drones, S.A.S., – QFO sued Parrot for patent infringement.
  • UNITED STATES OF AMERICA v. CORVUS EYE PRODUCTIONS LLC – FAA was investigating Corvus and the owner. They sent a subpoena to the owner of Corvus. One thing led to another and the FAA worked with a U.S. Attorney to request a federal judge to order Corvus and owner to comply with the subpoena. The judge ordered the subpoena because the owner defaulted.

United States Court of Federal Claims

 

FAA and/or National Transportation Safety Board

From the U.S. Government Accountability Office May 2018 report,

drone-enforcement-actions-table

Federal International Trade Commission

  • Autel filed a complaint against DJI in the Federal International Trade Commission. on August 30, 2018.

Federal Communications Commission

Other: (Because I don’t know anything else).

  • Department of Transportation has been doing some investigations on some UAS operators.  The DOT IG’s office testified, “Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and 9 were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions.”  23-10-9= 4 still open?

Drone Lawsuits in State Courts

California 

  • Mark Anderson v. Aerovironment Inc., Et. Al. – Wrongful termination case in Los Angeles Superior Court where Anderson he was wrongfully terminated because the defendant transported at least one drone with a live bomb on a Delta airlines flight. Bloomberg article on it. In-depth investor report on it.
  • Telling v. DJI – Class action lawsuit against DJI in Los Angeles Superior Court
  • City of San Francisco v. Lily – The district attorney for San Francisco is suing the company Lily for false advertising and unfair business practices.
  • City of Los Angeles v. Arvel Chapel – Not Guilty. Criminal prosecution by the city under their city ordinance. The jury held Arvel not guilty.
  • Joe v. McBay – Small claims case. McBay shot down Joe’s drone. The judge ordered McBay to pay for the shot-down drone.
  • Pituch v. Pi Kappa Phi
  • Pituch v. Perfect Event Inc. – Pi Kappa Phi of the University of Southern California hired Perfect Event to throw a party. One of the two defendants hired the drone operator who crashed the drone into the plaintiff’s head. She is suing both defendants for negligence and premises liability.
  • Darshan Kamboj v. Hollycal Productions, et al. San Bernardino County Superior Court Case Number CIVDS1714762. This is the underlying action with the Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. et al. case. Basically,  Holly Cal Productions was doing a wedding shoot and the drone flew too low and struck a lady in the eye which resulted in blindness.

Colorado

  • Boustred & Horizon Hobby v. Align Corporation – On appeal, court affirmed lower courts judgment denying Align’s motion to dismiss the case against them. Align is a Taiwanese company who sells model aircraft through Horizon Hobby. Boustred lost an eye when the toy helicopter broke and is now suing Align and Horizon Hobby under strict product liability. The appeals court affirmed the trial courts ruling that personal jurisdiction can be held over a Taiwanese company.
  • Richard T. Jacky and Tamsin Jacky v. Parrot, S.A. et al. – Products liability lawsuit where a guy injured his eye with a Parrot rolling spider drone.

Connecticut

  • Pedro Rivera, v. Brian Foley, Edward Yergeau, & Hartford Police Department– Plaintiff works for a TV station and responded to a police scene while NOT working (his own free time). Plaintiff flew his drone and the police officer responded to the plaintiff’s flight. Police officer called Plaintiff’s employer and made suggestions that Plaintiff should be disciplined to maintain goodwill. Plaintiff was suspended for a week. Plaintiff sued claiming his constitutional rights were violated.

Florida

Kentucky

  • Commonwealth of Kentucky v. Meredith – The famous “drone slayer” case where Meredith shot down the drone. He was prosecuted for criminal mischief and wanton endangerment. The judge dismissed the case saying, “He had a right to shoot at this drone, and I’m gonna dismiss this charge[.]” Note: there is also a federal district court case associated with this case.

Nevada

New Hampshire

  • Ellis v. Billcliff
  • Ellis v. Searles Castle – Billcliff, the groom, was getting married at Searles Castle. He was flying a drone. He went to go dance and put his drone down. Someone flew the drone and crashed it into a wedding guest, Ellis. She is now suing Billcliff and also the Searles Castle for damages.
  • Eaton, the other girl injured along with Ellis, is also suing Billcliff and Searles Castles.

New Jersey

  • Russel Percenti shot down a drone and was prosecuted for possession of a weapon for an unlawful purpose and criminal mischief.

New Mexico

New York

  • State v. Beesmer – Adjudicated not guilty. Flew his drone outside a hospital and was charged with unlawful surveillance. Held not guilty by jury.
  • State v. Daniel Verley –  New York City teacher crashed his drone into U.S. Open tennis match. He was prosecuted. They entered a plea deal to do community service.
  • State v. Riddle –  Guy crashed into the Empire State Building. Was prosecuted. Pleaded guilty to disorderly conduct. He has to pay a $200 fine and complete two days of community service.

North Dakota

  • State v. Turgeon – Adjudicated not guilty. Criminal prosecution for flying a drone allegedly near an airplane near the Dakota Pipeline protests. He was charged with a felony and two misdemeanors.
  • State v. Dewey – Criminal prosecution for stalking. Dewey was flying a drone during the Dakota Pipeline protests.
  • State v. Brossart – Not really a drone case, but a predator drone was used to track down a man. The crazy part is this was in 2012! This is more of a 4th amendment case.

Pennsylvania

  • Commonwealth v. Roselli.  Adjudicated guilty and put on probation for 2 years. Roselli flew his drone  near a helicopter. He was charged with risking a catastrophe (felony) and recklessly endangering another person (misdemeanor).  He did a plea deal. He pleaded nolo contedere to the misdemeanor and the prosecutor dropped the charges for the felony. He was put on probation for 2 years and to pay court costs.

Tennessee

  • State v. Haddox – Haddox was flying his drone during “CMA Fest activities and the Predators watch party on Broadway.” He was arrested and charged with reckless endangerment and trespass. The “reckless endangerment charge stems from Haddox being unable to maintain line of sight of the drone and flying it over a ticketed event with thousands of persons present.” The two dockets are here.

Washington State

Wisconsin

 

Other:

GoPro received a class action shareholder lawsuit. The lawsuit surrounds statements made by the CEO regarding their drone which was later canceled.  A second class action against GoPro was also filed. 


Section 107.73 Initial and recurrent knowledge test. (2018)

part-107-intial-and-recurrent-knowledge-test

Are you interested in the Part 107 initial or recurrent knowledge test?

In this article we will discuss (1) the Part 107 initial knowledge test, (2) the Part 107 recurrent knowledge test, (3) the differences between both tests, (4) practice Part 107 initial and recurrent knowledge test, (5) actual language from 107.73, and (6) the FAA’s commentary on knowledge tests from the preamble to the Small Unmanned Aircraft Rule.

This article on the initial and recurrent knowledge test is part of an overall set of articles on each of the Part 107 drone regulations. Use these links below for navigation between the regulation pages.

Previous Regulation (107.71)Back to Drone Regulations DirectoryNext Regulation (107.74)

Table of Contents:

 

Part 107 Initial Knowledge Test

If you want to fly commercial in the United States, you’ll most likely be flying under Part 107 which requires a remote pilot certificate. To obtain for the first time a remote pilot certificate, you’ll need to take and pass a Part 107 initial knowledge test. If you are a current Part 61 certificated manned pilot, you have an option of going another method. See my step-by-step instructions page on how to obtain your remote pilot certificate.

The Part 107 initial knowledge test contains 60 questions and you have 120 minutes to take it. The subject areas on the exam are: (1) regulations, (2) airspace, (3) weather, (4) loading and performance, and (5) operations. You’ll need to pass the exam with a score of 70% or higher.

Part 107 Recurrent Knowledge Test

Individuals who have obtained their remote pilot certificates have to maintain their aeronautical knowledge currency by doing 1 of 3 methods. Section 107.65 says, a “person may not operate a small unmanned aircraft system unless that person has completed one of the following, within the previous 24 calendar months:

(a) Passed an initial aeronautical knowledge test covering the areas of knowledge specified in §107.73(a);

(b) Passed a recurrent aeronautical knowledge test covering the areas of knowledge specified in §107.73(b); or

(c) If a person holds a pilot certificate (other than a student pilot certificate) issued under part 61 of this chapter and meets the flight review requirements specified in §61.56, passed either an initial or recurrent training course covering the areas of knowledge specified in §107.74(a) or (b) in a manner acceptable to the Administrator.”

One of the methods is to take the Part 107 recurrent knowledge test. This article is focused specifically on the initial and recurrent knowledge test. I have addressed elsewhere other issues like:

The recurrent knowledge test consists of 40 questions. You have 1.5 hours to take the exam. The subject areas consist of regulations, airspace, and operations.

Differences Between the Initial & Recurrent Knowledge Test

The initial has 60 questions while the recurrent knowledge test has 40 questions.

The initial gives you 120 minutes while the recurrent knowledge test is 80 minutes.

Since the number of questions decreased and also the number of subjects tested with the recurrent knowledge test, this might cause confusion as to how to spend your time studying. There are two ways at looking at how you should focus your time: (1) comparing using the airmen certification standards and (2) using the actual subject areas of the regulations.

Comparison Using the Airmen Certification Standards (ACS)

Here is a table I created comparing the initial to the recurrent knowledge test using the ACS.

Please note that while Area I and Area II are being tested completely, in the recurrent knowledge exam, tasks  A. Radio Communications Procedures and E. Physiology are not tested so it’s really not ALL of Area V.

Comparison Using the Regulations

Another way of determining how to spend your time studying is looking at what the FAA really wants you to know based upon what the regulations specifically list. Section 107.73 and 107.74 list out specific areas.

Remember that the current manned pilots aircraft pilots have another way of getting current. They can take the online training courses. I took the topics from the initial and recurrent knowledge test and the topics from the initial and recurrent online training course and compared them in a table below.

 

initial versus recurrent remote pilot (aka drone license) test

The FAA is really emphasizing the first 4 subjects. You should know those areas like the back of your hand.

The 5th, 6th, and 7th lines also give you a clue that you MUST know that if you are going for an initial or recurrent knowledge test.

Part 107 Initial Knowledge Practice Test Questions

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Part 107 Recurrent Knowledge Test Practice Questions

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